Jones a Victory for Privacy but Only Beginning of Fixing Fourth Amendment Doctrine

Today, the Supreme Court issued its decision in U.S. v. Jones, unanimously holding that law enforcement violated the Fourth Amendment by affixing a GPS tracker to a vehicle to monitor its movements without obtaining a search warrant from a court. The following statement can be attributed to Berin Szoka, President of TechFreedom:

This was an easy case: law enforcement plainly trespassed on private property protected by the Fourth Amendment. But as the majority notes, today’s holding is only the bare minimum of the Constitution’s protections. The harder question awaits the Court: When does purely electronic surveillance—without physical trespass—violate the Fourth Amendment?

At the very least, the Court must reconsider the “third party” doctrine invented by lower courts, which denies us protection for information we share with trusted third parties like “cloud” services that host our email, photos, and documents. The Court should make clear that Fourth Amendment protections hinge not on keeping information secret, but on whether we take steps to preserve that information as private. That, not the “reasonable expectation of privacy,” is the standard the Court applied in its landmark 1967 Katz decision. It is also the only standard that will effectively protect Americans’ privacy in the digital age.